SHARON L. GLEASON, District Judge.
[ 959] Eric P. Jorgensen, Earthjustice, Juneau, AK, Erik Clifford Grafe, Earthjustice, Anchorage, AK, Jared Eldridge Knicley, Natural Resources Defense Council, Washington, DC, Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for Plaintiffs.
David B. Glazer, U.S. Department of Justice, Environment and Natural Resource, San Francisco, CA, Meredith Lisa Flax, Washington, DC, for Defendants.
Jeffrey W. Leppo, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, for Intervenor–Defendant.
[ 960] ORDER RE CROSS–MOTIONS FOR SUMMARY JUDGMENT
SHARON L. GLEASON, District Judge.
Before the Court at Docket 47 is Plaintiffs' Motion for Summary Judgment. The Federal Defendants and Alaska Oil and Gas Association both opposed and cross-moved for summary judgment. Oral argument was not requested by any party and was not necessary to the Court's determination. For the reasons set forth below, Plaintiffs' motion will be denied and the Federal Defendants' and Intervenor–Defendant's cross-motions will be granted.
Plaintiffs, six environmental organizations, challenge an incidental take regulation (“ITR”) promulgated by the U.S. Fish and Wildlife Service (“the Service”) that is effective from June 12, 2013 to June 12, 2018. The ITR sets out the permissible methods for the incidental taking of small numbers of Pacific walruses in the Chukchi Sea in connection with oil and gas exploration activities. The Chukchi Sea is located off the North Slope of Alaska. It is a promising location for oil and gas exploration and development. It is also an important habitat for the Pacific walrus, particularly in the Hanna Shoal region within the sea. Plaintiffs assert that the ITR violates the Marine Mammal Protection Act (“MMPA”), the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”). Plaintiffs' claims all relate to the manner in which the ITR addresses mitigation measures for walruses in the Hanna Shoal area.
I. The Marine Mammal Protection Act
The MMPA generally prohibits the taking of marine mammals. The term “take” is defined broadly under the Act and means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” The MMPA defines harassment to include “any act of pursuit, torment, or annoyance” which “has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.”
The MMPA includes several exceptions to the general taking prohibition. The exception at issue in this case allows for “the incidental, but not intentional, taking by citizens while engaging in [an activity such as oil exploration] ... of small numbers of marine mammals of a species or population stock” when the Secretary of the Interior “finds that the total of such taking ... will have a negligible impact on such species or stock....” After notice and comment, the Secretary may then prescribe regulations that authorize such take for up to five years. The regulations must “set forth permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its [ 961] habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.” This type of regulation is known as an incidental take regulation, and is the type of regulation that is challenged here.
After an ITR is issued, a citizen may apply for a letter of authorization (“LOA”) that authorizes incidental take consistent with the ITR. LOAs are issued after a non-public process if the Service determines that the proposed activity is one described in the incidental take regulation and concludes that the level of take caused by the activity will be consistent with the findings made in the regulation. Notice of the issuance of an LOA is to be published in the Federal Register within 30 days of its issuance. The regulation also provides that LOAs will specify “any additional terms and conditions appropriate for the specific request.”
In 1991, the Service first issued regulations authorizing the incidental take of walruses and polar bears in connection with oil and gas exploratory activities in the Chukchi Sea for a period of five years. Another set of five-year incidental take regulations were issued for the Chukchi Sea for the period from 2008 through 2013. A legal challenge was brought regarding those regulations that was rejected by the Alaska District Court and affirmed on appeal to the Ninth Circuit.
II. The National Environmental Policy Act